Tuesday, June 30, 2009

ADF Alliance Alert identified an earlier article about Bonilla v. Hurst, a pro se lawsuit in Lousiana in which a same-sex couple claims that the state constitutional ban on gay marrige violates due process and equal protection under the 14th Amendment.

"The arguments against gay marriage are pretty silly, " [plaintiff Kristoffer] Bonilla said. "As history progresses, you can't make silly arguments anymore ... There is a deep personal meaning of what it feels like to be a second-class citizen, to be told that my love is unworthy of state recognition."

Several of these attorneys have served in Republican administrations. According to the firm's website,

The firm's chairman, Charles J. Cooper, served in the Department of Justice as the Assistant Attorney General for the Office of Legal Counsel during the Reagan Administration.

Nielson was Counsel to Attorney General John Ashcroft, and Peterson was Associate Counsel to President George W. Bush in the White House Counsel's Office. Among his accomplishments, Thompson's firm profile references his work defending California Prop. 209 and challenging the McCain-Feingold law on campaign finance reform.

Monday, June 29, 2009

Chief U.S. District Judge Vaughn Walker on Thursday [July 2nd] will consider arguments on whether to block Proposition 8, which amended the California constitution last November and barred gay and lesbian couples from being legally married in the state ...

With tough legal hurdles to persuade federal judges to block state laws at such an early stage, legal experts say the odds are against Walker granting the injunction request. But experts say it is more of a tossup to predict whether Olson and Boies succeed in their ultimate goal, which is prevailing in the U.S. Supreme Court.

"Both outcomes are available,'' said Marc Spindelman, an Ohio State University law professor following the issue closely. "But it's not inconceivable the courts may think it's too soon for the federal courts to weigh in and settle the matter one way or the other.''

SAN FRANCISCO — As much as he might have liked to see his landmark ruling favoring same-sex marriage stand, Chief Justice Ronald George knew he was doing the "right thing" when he upheld Proposition 8 late last month.

"It was so clear to me that was the only right thing to do," he said in an interview Friday. "I've been on the bench for 37 years and have had to let the law take me where it had to, regardless of my own personal views."

"In the marriage cases, I felt the court honored its obligation to apply the limitations that the people had placed upon their own legislative authority by enacting our state Constitution," George said. "And in the Prop 8 case, the court was honoring its obligation to uphold the people's will as expressed in their desire to amend the Constitution."

This article concerns the scope of religious-liberty exemptions that several New England states have included in their marriage-equality laws. The National Journal also reports on the law professors who advocated for these exemptions. One of the law professors, Douglas Laycock, is a scholar on religious liberty and the law. He believes that such exemptions represent a good-faith effort to accommodate religious opponents of marriage-equality laws who object that the laws force them to violate the tenets of their faith. Substantive religious-liberty protections may, in fact, make a crucial difference in battleground states like California:

Compromising on exemptions won't win over every Christian conservative in the country -- and it doesn't need to, argued Laycock, an expert on religious liberty. Many gay-marriage opponents are worried that they will somehow be made complicit in same-sex unions, he argued. Neutralizing that concern could be the key to tipping the scales in some states.

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

This lawsuit [now] claims that section 7.5 of Article I [of the California constitution, setting out the language of Prop. 8] violates the equal protection clause of the State Constitution. McCoy said, "we chose to bring this lawsuit in State Court rather than in Federal Court because sexual orientation is a protected class under California State Law and it is not recognized in Federal Law."

The amended complaint is not (yet) available at the website of the San Francisco Superior Court, so it is unclear whether McCoy has somehow raised an equal-protection issue that the California Supreme Court has not already decided in Srauss v. Horton. Unless he has, the Superior Court will likely dismiss the case, and the dismissal will likely be sustained if appealed.

Friday, June 26, 2009

In court briefs filed Thursday night, the American Civil Liberties Union and the National Center for Lesbian Rights formally endorsed the arguments of a high-powered legal team trying to block Prop 8 in federal court in San Francisco.Here is the brief, and here is the press release by the American Foundation for Equal Rights. The Advocate also reports on the brief.

The ACLU and the NCLR argue that "Proposition 8's declaration of inequality fails to meet even the minimal level of constitutional scrutiny demanded by the federal equal protection guarantee." Under this "rational basis" standard of constitutionality, Prop. 8 must advance a legitimate government purpose for discrimination based on sexual orientation. Although Boies and Olson also argue that Prop. 8 fails to satisfy the "rational basis" standard of constitutionality, the ACLU and NCLR examine the unique circumstances under which it does:

Considering the unique circumstances surrounding its enactment and stated intent of stripping same-sex couples of the status of mariage while leaving intact all of the other substantive rights of same-sex couples, the sole purpose of Proposition 8 manifestly is to establish a declaration of the inequality of gay and lesbian couples under California law.

"This bill provides legal protection for cohabiting couples and is an important step, particularly for same-sex couples, whose relationships have not previously been given legal recognition by the state," Justice Minister Dermot Ahern said in a statement.

Georgetown University Law Professor Nan Hunter comments on Gill v. OPM, a lawsuit that challenges section 3 of the federal DOMA. She expresses her hope that the expected due date for the Department of Justice's brief will give the DOJ time "to think throught its arguments and do the right thing."

In her June 23rd announcement, Bowen references the April 20th version of the marriage equality initiative as "the third marriage- related initiative." One other "marriage-related" initiative - the Domestic Partnership Initiative - would replace "marriage" in state law with "domestic partnership." (See the text here, the SOS announcement here, and previous blog posts here.)

The January 26th and April 30th versions of the California Marriage Equality Act Initiative have just one substantive difference:

This measure is not intended to, and shall not be interpreted to, mandate or require clergy of any church or religious institution to perform a service or duty that goes against their faith. (April 30th)

This measure is not intended to, and shall not be interpreted to, mandate or require clergy of any church or religious institution to perform a service or duty that is incongruent with their faith. (January 26th)

I did not consider that Yes on Equality, the Initiative's proponent, has had opportunity since late January to remedy arguable deficiencies in the religious-liberty provision. Charles Lowe proposed the Initiative's language with the help of attorneys. In this June 11th Bay Area Reporter article, he says that he would be "very surprised if what we filed wound up being what is used." Are further changes still planned or - at least under consideration - to preempt or undercut religious opposition, by strengthening the religious-liberty provision?

Wednesday, June 24, 2009

[New York Governor David] Paterson ... issued a second proclamation calling the Senate back for another special session at 3 p.m. today, with an agenda topped by this year's most controversial measure: the legalization of gay marriage.

what it said was overwhelming evidence that civil unions and domestic partnerships in other states amount to a "separate and unequal" regime that has created confusion but has not protected participants from discrimination. And it contended that the stigma of being denied access to the "exalted" state of marriage has reinforced the "otherness" of same-sex couples.

Greens Senator Sarah Hanson-Young will today introduce a private member’s bill to grant same-sex couples equal marriage rights in Australia, and table along with it a 30,000-strong petition in support of legalising same-sex marriage.

"It appears to me that the president of the United States is making it clear that the attorneys for the United States do not represent the views of the administration. I think they have a duty to withdraw their motion. I think they have a duty to join my side of the case."

But the Chronicle engages two legal scholars to explain that Obama's comments have no bearing on the DOJ's legal arguments.

Monday, June 22, 2009

In November 2004, Michigan voters approved Proposition 2, amending the state constitution (Art.I, Sec.25) to ban not only same-sex marriages, but also same-sex civil unions that are "similar" to marriage. The editors of the Lansing State Journal support a constitutional amendment to allow for domestic partnerships, citing evidence that voters would also support that change:

Prop 2 was sold as a protection against an extreme agenda. But it actually was the extreme measure because it strips the public from enacting moderate measures, such as civil unions that confer legal rights, without forcing religious organizations to endorse or perform ceremonies.

The Journal's editors appear to be unaware of proposals in Wisconsin's budget to confer domestic partner benefits, even though Wisconsin's constitution bans same-sex marriages and "substantially similar" civil unions. Michigan's ban on same-sex civil unions has ambiguous scope: how similar to marriage must such unions be to qualify for exclusion? Michigan's Attorney General has narrowly interpreted "similar" to prohibit the City of Kalamazoo's Domestic Partner Benefits Policy, because "the intent of the City is to accord same-sex partners the same health- and retirement-related benefits accorded to married spouses."

So Wisconsin's example does not appear ripe for Michigan to follow, unless a same-sex couple has grounds to challenge the Michigan AG's opinion.

At any rate, this editorial suggests a growing opportunity to chip away at "marriage protection amendments."

This article concerns uncertainty over the validity in California of out-of-state marriages licensed before Prop. 8 was adopted. The article links to a memorandum by Shannon Minter, Deb Wald, and Courtney Joslin on legal grounds for the validity of these marriages.

Sunday, June 21, 2009

The Examiner has posted a press release by Fair Wisconsin on the state Senate's approval of a budget that includes two proposals for limited domestic partnership benefits. These would extend benefits to same-sex partners of state employees and to Wisconsin same-sex couples. As Fair Wisconsin notes, this development matters in a state whose constitution (Art. XIII, Sec. 13) bans same-sex marriage and "substanitally similar" civil unions:

Governor [Jim] Doyle, who included domestic partnership protections as part of his biennial budget, is expected to sign domestic partnership protections into law by the end of June. This enactment would make Wisconsin the first state with an existing constitutional amendment banning marriage equality and civil unions to provide domestic partnership protections for same-sex couples, and the first state in the Midwest to legislatively enact protections for same-sex couples.

Will Wisconsin set a strategic example to advocates of same-sex marriage in states that constitutionally ban such marriages? Several state Supreme Courts have found that because domestic partnerships are inherently unequal, they reinforce the stigmatization and second-class status of same-sex couples. That finding have even more force with respect to domestic partnerships with only limited benefits. Nevertheless, even limited benefits materially improve the lives of same-sex couples who are the beneficiaries. And many advocates favor incremental changes in public opinion to nurture growing political support for gay marriage. In fact, the domestic partnership proposals in Wisconsin have enough strategic value to concern gay-marriage opponents in other states with "Marriage Protection Amendments."

Gay-marriage supporters have faulted Obama not just for the DOJ brief defending the federal DOMA, but also for his recent memorandum on limited domestic partner benefits for federal employees. However, the presidential memorandum represents a political strategy that may have overlooked practical merits, with potential to do more good than harm, given that Obama does not have enough votes in the Senate to overcome a filibuster against repealing the federal DOMA. His initiative on domestic partnerships, like Governor Doyle's initiative, not only helps affected same-sex couples, but also changes the terms of public debate, by advancing arguments based on equality and fairness. Repeal of the federal DOMA faces formidable political opposition; refocusing public debate on equality and fairness can weaken such opposition.

Delegates for the association adopted a resolution Saturday asking state legislators to give full marriage rights to same-sex couples. The Association said New York's Domestic Relations law should also be changed to recognize same-sex marriages performed in other states.

Unless the D.C. Superior Court intervenes before July 6th, a law will take effect that requires D.C. to recognize same-sex marriages licensed elsewhere. A referendum on the law can not be held once it takes effect. Opponents of same-sex marriage fear that without a referendum, they have no effective way to preempt the next expected step of the D.C. Council - to adopt legislation that allows same-sex couples to marry in D.C..

The Alliance Defense Fund seeks a stay of the law. But Judge Judith Retchin in the case expressed doubt that she has authority to issue a stay:

“You’re out of time already if the court doesn’t stay the legislation,” Retchin told the proponents’ counsel, Brian Raum of the Alliance Defense Fund. “I don’t know if the court has the power to stay the legislation.”

Opponents of gay marriage filed a lawsuit in D.C. Superior Court yesterday hoping to force a referendum on whether to recognize same-sex marriages performed in other jurisdictions ... The plaintiffs are being represented by attorneys from the Alliance Defense Fund, a Christian advocacy and legal defense group.

comes two days after the Board of Elections and Ethics ruled that such a referendum, to overturn a recently passed District law recognizing out-of-state gay marriages, would violate the D.C. Human Right Act and thus would be ineligible to appear on the ballot ... [T]he petitioners have asked for expedited review, since the law is scheduled to exit congressional review and go into effect on July 6—putting it out of the reach of referendum.

Alliance Defense Fund attorneys filed a lawsuit Wednesday against the District of Columbia Board of Elections and Ethics on behalf of Bishop Harry R. Jackson and other D.C. voters, challenging its vote Monday to deny the people a say on the city council’s decision to recognize same-sex “marriages” from other jurisdictions.

The group behind an unsuccessful effort to get the D.C. elections board to put the issue of same-sex marriage to a referendum plans to challenge the board's decision in D.C. Superior Court on Wednesday.

[Although the Alliance Defense Fund will appeal the Board's decision,] staffers for Democrats on the relevant committees in Congress have told me they have no intention of interfering with the D.C. City Council's decision. The D.C. Council will likely be considering full marriage equality within the year. The only hope for anti-marriage-equality activists seems to be for Congress to rally around the D.C. DOMA Act or similar legislation, and right now that seems unlikely.

Shannon Minter, legal director of the National Center for Lesbian Rights and lawyer for same-sex couples in the state court case, said Friday that his organization may take the same step. The federal suit is "going forward, and we certainly want it to succeed," Minter said.

Unlike the state Attorney General and Governor, who have filed papers supporting the federal challenge but opposing the requested preliminary injunction, Herrera and [Chief Deputy Theresa] Stewart argued that the injunction should be granted.

This program, in the first hour, engages Senator Leach and another state Senator in a debate on same-sex marriage. Here is the program description:

Our guests have two dueling bills in the state legislature. State Senator DAYLIN LEACH, a Democrat representing Montgomery County, has introduced a bill to amend the Pennsylvania ban on same-sex marriage to offer “full and equal marriage rights” to same-sex couples. And State Senator JOHN EICHELBERGER, a Republican representing Blair County, has introduced a bill amending the state Constitution to define marriage between a man and a woman. Listen to the mp3

Gov. Arnold Schwarzenegger has declined to defend the constitutionality of Proposition 8, telling a San Francisco judge that the legality of the anti-gay marriage measure is for the courts to decide.The governor's decision to remain neutral in a federal challenge to Proposition 8 [ Perry et al v. Schwarzenegger et al., (N.D.Cal. 3:09-cv-02292, filed May 22, 2009)] means no statewide official will be defending the measure in federal court.

Thursday, June 18, 2009

In this opinion article, Pepperdine University law professor Douglas Kmiec offers a provocative remedy to the controversy over Prop. 8. He recommends filing a state court action to challenge the California Supreme Court's holding, under Strauss v. Horton, that the state has a duty to treat gay and straight same-sex couples equally with respect to the rights and duties of marriage, even though same-sex couples can not obtain marriage licenses. Attorney General Jerry Brown could claim that to fulfil the full promise of equality, the Court must allow a different remedy:

The attorney general, in defending the state's interest, could ask for a court order enjoining the state from using the terminology of marriage altogether. Instead, the state would give everyone -- gay or straight -- a civil union license and allow churches, synagogues, temples and mosques to say who can and cannot "marry" within their individual traditions. Religious freedom, a bedrock constitutional value of like importance to equality, would also be a winner.

During the oral arguments in Strauss, Justice Ming ChinaskedKenneth Starr whether the Court could order just the remedy Kmiec favors. Starr answered that the Court should defer to the state legislature - an answer that Chin must have expected and appeared to welcome. So why does Kmiec think his strategy would work?

Wednesday, June 17, 2009

"We all have to acknowledge this is only one step," Obama said in the Oval Office, where he signed a memorandum extending some benefits, such as visitation or dependent-care rights [but not health care], to the same-sex partners of gay federal employees ... John Berry, head of the Office of Personnel Management and the highest-ranking gay official in the administration, said the president is doing the best he can while waiting for Congress to act.06/17/09 White House Blog:

Obama also said that the federal DOMA is "discriminatory ... it interferes with states' rights, and we will work with Congress to overturn it."

He also announced his support "for an important piece of legislation introduced in both Houses of Congress last month -- the Domestic Partners Benefits and Obligations Act of 2009." (H.R. 2517 / S.1102)

On June 24th, Culhane will join Stacey Sobel in a debate on how the Obama Administration has addressed, or failed to address, LGBT issues. NPR’s Radio Times with Marty Moss-Coane will host the discussion, and whyy.org will post the mp3 file.

Federal employees will now be able to add their same sex partners to their long term insurance policies, and can use sick days to take care of their partners and non-biological children ... Under the Obama administration, we could hope to look forward to more of these acts that will span the gap between gays and non-gays in the workplace. While minor, it could be a sign of a major sea change in employment law, eventually leading to the much contested "Don't Ask, Don't Tell" policy discriminating against homosexuals in the military.

The “states’ rights” reason is important to the legal ear ... [Obama acknowledged that] DOMA should be repealed precisely because it doesn’t respect a state’s decision to confer the status of marriage on same-sex couples. Not bad, although likely lost on non-lawyers (unless you are lucky enough to be reading this!)

Criticizing [the President's memorandum] is, to be honest, too easy - like shooting fish in a barrel. It is so obviously a thrown-together document - it basically directs the agencies to identify benefits that can be extended to domestic partners without congressional action.

Early news says that one of the benefits Obama is extending to gay federal employees is the ability to use their sick leave to care for partners and their children. Well -- news flash! They already have this right.

The strong symbolism of the president’s move cannot be denied. The federal government is, for the first time, acknowledging that its employees’ same-sex partners are worthy of respect ... Still, it is impossible to ignore how much of the glass is not full. The Defense of Marriage Act ... needs to be repealed.06/18/09 San Jose Mercury News:

As he signed the order on benefits Wednesday, Obama said he was "proud to issue a presidential memorandum that paves the way for long-overdue progress in our nation's pursuit of equality." He'll be even prouder when he finishes the job.

President Obama has signed a directive giving new benefits to same sex partners of federal employees, but many gay rights advocates argue the administration is failing on campaign promises: An update on the Obama administration and gay rights. With guests John Berry, director, Office of Personnel Management and Joe Solmonese, president, Human Rights Campaign.

Byron Babione, an attorney with the Alliance Defense Fund told the Baptist Press, that

Obama's statement on DOMA [is a] "a nonsense statement." DOMA actually protects the right of states to determine social policy with respect to marriage. It allows states the freedom to protect marriage between a man and a woman and not to have the same-sex marriages of other states imposed upon them. … Repealing DOMA actually does the opposite of protecting states' rights. … Repealing of DOMA also would do untold damage to the benefits that marriage brings to society. It would open the way to defining marriage and its value out of existence."06/18/09 Reuter (source: ADF Alliance Alert):

Obama's promise to offer ancillary employee benefits - such as long-term-care insurance and the right to use sick leave to care for domestic partners - while still denying more valuable benefits, such as health insurance and retirement funds, may have further agitated gay and lesbian activists who were already fuming over other perceived snubs.

[S]everal of the nation’s most prominent gay and lesbian political leaders quickly attacked the president for failing to extend full health care benefits to the same-sex partners of federal workers, questioning the administration’s explanation that it is precluded from doing so by the Defense of Marriage Act, which Mr. Obama had vowed to repeal during his presidential campaign.

See, for example, this statement by Kate Kendell, executive director of the National Center for Lesbian Rights.

President Obama's expected Executive Order extending benefits to homosexual partners appears to be a violation of the Defense of Marriage Act (DOMA), and clearly violates the spirit of the federal law which defines marriage as the legal union of one man and one woman as husband and wife.06/17/09 Human Rights Campaign:

Although today’s actions are only the beginning in what will be a multi-step process towards achieving real and tangible equality for our community, it is no doubt an important first step. We commend President Obama and his administration for taking this action to provide some basic benefits for same-sex partners of federal employees and his endorsement of legislation that would provide domestic partner health benefits.06/17/09 Black Christian News:

"[I]t's disingenuous for Barack Obama to campaign that he wants to repeal the federal DOMA and then on the other hand say that he's in favor of marriage between a man and a woman. By repealing DOMA, you are favoring same-sex marriage being forced upon the other states."

Tuesday, June 16, 2009

The American Civil Liberties Union and the National Center for Lesbian Rights have sent a demand letter to a hospital in Fresno. In the letter, the organizations allege illegal discrimination against a patient and her same-sex partner. The patient was admitted to the emergency room after collapsing from a seizure during the couple's participation in the recent "Meet In The Middle Rally" in support of gay marriage.

“Until the California Supreme Court upheld Prop 8, Kristen and Teresa were planning to get married. In this climate, hospitals must be especially diligent to protect same-sex couples from discrimination,” said Elizabeth Gill, a staff attorney with the ACLU of Northern California. “As these events so painfully demonstrate, no matter what hoops same-sex couples jump through to protect their relationships, these kinds of horrible things will continue to happen as long as couples are denied the recognition and respect that only comes with marriage.”

Monday, June 15, 2009

State Sen. Daylin Leach, D-17, last week introduced Senate Bill 935 that would offer “full and equal marriage rights” to same-sex couples in the state and legally recognize those marriages performed in other states.

The Advocate interviewed John Berry, Director of the Office of Personnel Management, before he

took the stage at Capital Pride ... [He] seemed to be prompted by growing discontent in the [LGBT] community following the Justice Department’s decision to defend the Defense of Marriage Act. Berry also denied reports that any sort of “deal” had been cut by White House officials regarding LGBT legislation and when it would be accomplished.

This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces. He has to enforce the laws that have been enacted appropriately and that he has inherited. It would be wrong for me or any of our community to advise him to lie or to shirk his responsibility. He’s doing his job. He has made clear that he stands for the repeal of DOMA. It will be part of this administration’s agenda to accomplish that act. We ought not waste energy and angst attacking him when we should be focusing the energy and effort on getting 218 votes in the house and 60 votes in the Senate, and that’s where we ought to target the energy and the strength of this community and this president is with us, this is our agenda and it’s his agenda.

Sunday, June 14, 2009

Cole reviews several books on same-sex marriage whose authors are law professors and constitutional scholars. He describes recent court decisions and laws, and the historical context for them; examines three arguments against same-sex marriage and the authors' responses to them; assesses the strategy underlying Perry et al. v. Schwarzenegger, while favoring the benefits of incrementalism and state court victories; considers proposals to separate the civil and religious aspects of marriage; and concludes that same-sex marriage fulfills "the constitutional principle of equality."

Although Cole reviews Same-Sex Marriage and Religious Liberty: Emerging Conflicts, he says nothing about a topic of keen interest - the debate on the grounds for, and scope, of religious-liberty exemptions in same-sex marriage laws.

Geidner refutes mischaracterization of the DOJ's defense of the federal DOMA, faulting John Aravosis of AmericaBlog for his claim that the Obama Administration has compared gay marriage to incest and pedophilia. "That John continues to write about 'incest' is, as I have stated since the brief was filed, overstating facts in order to enrage."

In the first of two posts, Professor Hutchinson discusses the politics of the DOJ brief:

Obama is engaging the exact same song and dance regarding DOMA. Although he maintains that he supports the repeal of this "hurtful" law, his administration has defended it as legally rational legislation. This position is patently absurd.

Linda McClain, an unidentified blogger at this constitutional blog, focuses on three points:

(1) the contrast between the brief’s support of DOMA and President Obama’s call for its repeal; (2) the brief’s curious view of DOMA as representing a cautious and appropriate “neutrality” with respect to society’s still-evolving understandings of marriage; and (3) the brief’s selection of the most narrow and conservative formulations of the relevant constitutional tests for defining fundamental rights and liberties.

Constitutional scholar Laurence Tribe acknowledged that he found much of the DOJ brief “quite baffling—gratuitously reaching for substantive arguments lacking in plausibility, simplistic to the point of being insulting, and insensitive to the force of the strongest arguments against DOMA's constitutionality as well as to the sensibilities of both gays and straights who find DOMA as abhorrent as I know President Obama does.”

The one that bothers me the most is the argument that there is no anti-gay motivation behind DOMA, merely a desire by Congress to pursue a policy of "neutrality" with respect to the issue of same-sex marriage in a situation where some states might allow such marriages while others would oppose them. This is absurd.

John Culhane faults the DOJ's defense of the federal DOMA for doing much more than was procedurally necessary to achieve dismissal, so much so that it appears to show an intention to "to set the course of judicial progress on gay rights back many years."

[T]he DOJ brief goes further than it needs to go at this point in the case by addressing the merits of the constitutional issues in the case, which attacks both DOMA Section 2 (interstate recognition) and DOMA Section 3 (federal recognition). There's a hodge-podge of claims in the case. Everything from the Full Faith & Credit Clause to freedom of speech is hurled at DOMA by the claimants.

Given the standing argument, there's a good chance that the court's ruling in Smelt may not even reach the merits of the constitutionality of DoMA. But you can bet that a similar version of this brief from DoJ, based on the same arguments, will be filed in two weeks in federal court in Boston.

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.

The National Organization for Women calls on President Barack Obama and Attorney General Eric Holder to withdraw the U.S. Department of Justice brief filed in support of the Federal Defense of Marriage Act (DOMA) and to publicly renounce this discriminatory law. The brief was reportedly written by Bush administration holdovers, and if that is the case, this administration must immediately make it clear that President Obama does not support this position.

DOMA does not discriminate against homosexuals in the provision of federal benefits…. Section 3 of DOMA does not distinguish among persons of different sexual orientations, but rather it limits federal benefits to those who have entered into the traditional form of marriage.

In other words, DOMA does not discriminate against gay people, but rather only provides federal benefits to heterosexuals.

Alliance Defense Fund attorney Brian Raum plans to join in the motion. "We're confident that the arguments the U.S. government is making are correct," Raum told The Christian Post. "Hopefully, the court will dismiss [the case]."

We are also extremely disturbed by a new and nonsensical argument the administration has advanced suggesting that the federal government needs to be “neutral” with regard to its treatment of married same-sex couples in order to ensure that federal tax money collected from across the country not be used to assist same-sex couples duly married by their home states.06/12/09 Equality California:

This is a statement by Equality California (EQCA) Executive Director Geoff Kors. Kors does not explain why EQCA objects to the legal arguments, except to note that the DOJ has tried in its brief to justify "discrimination in government benefits against same-sex couples."

Here is the California Attorney General's answer to the Perry complaint. In his answer, Brown states:

The Attorney General of California is sworn to uphold the Constitution of the United States in addition to the Constitution of the State of California. Cal. Const., art. XX, § 3. The United States Constitution is the “supreme law of the land.” U.S. Const., art. VI, § 2; Cal. Const., art. III, § 1. Taking from same-sex couples the right to civil marriage that they had previously possessed under California’s Constitution cannot be squared with guarantees of the Fourteenth Amendment. Accordingly, the Attorney General answers the Complaint consistent with his duty to uphold the United States Constitution, as Attorney General Thomas C. Lynch did when he argued that Proposition 14, passed by the California voters in 1964, was incompatible with the Federal Constitution. Reitman v. Mulkey, 387 U.S. 369 (1967).

And here is Brown's "Opposition to Plaintiffs' Motion for Preliminary Injunction":

Staying operation of Proposition 8, without the certainty of a final judgment as to its constitutionality, would leave same-sex couples, as well as their families, friends, and the wider community, in legal limbo.

Brown's willingness to fight a state law that has been upheld by the state's highest court contrasted sharply with President Obama's decision this week to oppose a federal challenge to the U.S. Defense of Marriage Act brought in Orange County.

Gov. Arnold Schwarzenegger and Attorney General Jerry Brown on Thursday urged a federal judge to keep Proposition 8 in force for now, arguing that it would create too much uncertainty across the state to put the voter-approved ban on gay marriage on hold while the latest legal challenge unfolds in the federal courts ... Brown and Schwarzenegger argued separately that it would create too much havoc to put the law on hold until the constitutional issues are resolved, perhaps eventually by the U.S. Supreme Court. If Proposition 8 is blocked while the case is litigated, same-sex couples could resume marrying in California.

This article concerns the U.S. Department of Justice's motion to dismissSmelt v. United States with respect to its claims for relief from Sections 2 and 3 of the federal DOMA. Under Section 2 (28 U.S.C. § 1738C,), the Act allows a states to recognize only the out-of-state marriages of heterosexual couples. Under Section 3 (1 U.S.C. § 7), it restricts federal marrital benefits to heterosexual couples. The report has several significant mistakes and omissions.

First, this is not "the first gay marriage case filed in federal court." Other pending federal lawsuits either challenge state constitutional bans on same-sex marriage, or (like Smelt) challenge such bans and the federal DOMA, even if the DOMA challenge has not survived summary judgment. Based on news reports only, I have tried to identify pending federal lawsuits to challenge state constitutional restriction of marriage to heterosexual couples. [The U.S. Supreme Court dismissed the earliest federal challenge to a statutory restriction in Baker v. Nelson, 409 U.S. 810 (1972) (statutory restriction raises no substantial federal question about respect to right marry, whether that question involves due process or equal protection).] Until June 6th, Bishop et al v. State of Oklahoma et al (N.D.Okl. 4:2004-cv-00848) represented the earliest pending federal challenge to a "marriage protection amendment" (and a federal DOMA, although the DOMA challenge did not survive summary judgment.) On June 6th, the 10th Circuit ruled that the plaintiffs do not have standing to sue. (I have compiled a list of pending federal lawsuits challenging state constitutional bans on same-sex marriage.)

Second, DOJ bases its motion to dismiss upon lack of standing to sue under the federal DOMA, and claims that plaintiffs have not shown why the federal DOMA does not merit a presumption of constitutionality. According to the Chronicle, the Smelt compalint does not also allege that Prop. 8 violates the U.S. constitution.

In fact, the Smelt complaint also purports to challenge the federal constitutionality of Prop. 8. (See Compl., ¶ 29.) The Chronicle reporter even notes that

the California attorney general moved Thursday to dismiss the state lawsuit by the same couple, saying Hammer and Smelt lack standing to sue because their marriage was unaffected in any way by the passage of Proposition 8, the voter-approved gay marriage ban.

Plaintiffs have not suffered an “injury in fact” [required for standing to sue] because Proposition 8, as interpreted by the California Supreme Court [in Strauss v. Horton], has no effect on their marriage [Their marriage was licensed before Prop.8's adoption, and the Strauss Court upheld such marriages.] ... The fact that unmarried same-sex couples might [and, in fact, do!] have sufficient standing to challenge the constitutionality of Proposition 8 does nothing to confer standing on Plaintiffs.

LOS ANGELES (AP) -- Gay rights groups expressed dismay with the Obama administration Friday over its championing of the Defense of Marriage Act, a law the president pledged to try to repeal while on the campaign trail.

Thursday, June 11, 2009

This measure is not intended to, and shall not be interpreted to, mandate clergy or religious institution to perform a service or duty that goes against their faith.

Given what she says in her 05/02/09 LA Times opinion article, law professor Robin Wilson would consider this language to be the equivalent of paying "lip-service to religious freedom while enacting meaningless protections," as the First Amendment already protects clergy in the way the intiative would provide.

Yes on Equality filed the proposed initiative on April 30th. Yes on Equality activist Chaz Lowe says that it serves as a "placeholder," and that it was drafted with the help of unnamed attorneys. "I'd be very surprised if what we filed wound up being what is used," Lowe said.

Responding to an issue that the Prop. 8 campaign raised, Yes on Equality also includes a provision disclaiming any intention to change school curricula. The balance of the Reporter article concerns disagreement among marriage-equality supporters over how to address the school curriculum issue.

used similar language when it sponsored then-Assemblyman Mark Leno's Religious Freedom and Civil Marriage Protection Act bills in 2005 and 2007. (Both were vetoed by Governor Arnold Schwarzenegger.) "Clearly no clergy shall have to perform services against their will and repealing Prop 8 doesn't require anything to be taught in schools."

If Lowe is right that the draft language will change, perhaps the change will accommodate a less politically self-defeating exemption for religious liberty. On the politics of religious-liberty protection and same-sex marriage, consider this comment by Douglas Laycock, a scholar on religious liberty and the law, and a supporter of same-sex marriage:

[E]ach side has tended to make the Puritan mistake, seeking liberty for themselves and regulation for their opponents. The conservative religious community has been the most obvious about this, criminalizing same-sex relationships when they had the political strength to do so, and now resisting same-sex marriage where they still have the political strength to do that. The gay rights side has responded not only by opposing conservative religious movements politically, but often by opposing their claims to religious liberty as well.

The battle over same-sex marriage in the District moved to the city election board yesterday as supporters and opponents packed into a hearing room to debate whether the city should put the issue on the ballot.

ADF attorney Brian Raum, the Washington Post reports, testified that, under his interpretation of a 1995 ruling, the referendum does not violate the District's Human Rights Act.

The D.C. Board of Elections and Ethics held a hearing today on "whether the City Council bill to recognize same-sex marriages performed in others states can be put to a referendum ... A decision will likely come Friday, or early next week, but the board appeared sympathetic to the gay community's argument that a referendum would be a violation of elections law because of the the Human Rights Act."

two cases supporting his contention that District human rights law does not apply to the marriage-recognition law. One was a New York state decision; the other was the landmark Dean v. D.C. case, which the D.C. Court of Appeals handed down in 1995 [Dean v. District of Columbia, 653 A.2d 307 (D.C. App. 1995)]. That decision ... ruled that D.C.’s gender-neutral marriage statute in itself did not allow the city to issue gay marriage licenses.06/11/09 Washington Post:

Raum, the Washington Post reports, testified that, under his interpretation of the 1995 Dean ruling, the referendum does not violate the District's Human Rights Act.

Mark Levine, (lawyer and radio host) who was there on behalf of the Gertrude Stein Club, argued that the [Dean] court at the time was exercising judicial restraint by simply saying that only the City Council, rather than the courts, could legalize same-sex marriage. Levine also points out that it made sense for the court to rule that restricting marriage in 1995 wasn't discrimination, because there were no gay couples to discriminate against. So while the referendum might have been legal prior to other states accepting gay marriage, it no longer would be.

Wednesday, June 10, 2009

Law professor Dale Carpenterhas distinguished between substantive and political reasons for including religious-liberty exemptions in same-sex marriage laws. He believes that such exemptions may be needed in anti-discrimination laws, but finds no substantive reason to (also) include them in same-sex marriage laws. However, adding them to same-sex laws would "allow legislators to alleviate reasonable fears and reduce the opportunity for demagoguery against gay marriage – all while protecting gay families in the law."

Susan Brooks Thistlewaite provides support for Carpenter's view on the politics of religious-liberty exemptions. She is a former president of the Chicago Theological Seminary. She considers New Hampshire Episcopal Bishop Gene Robinson's comments on the importance of religious-liberty exemptions to passing New Hampshire's same-sex marriage law. Robinson said that if passed the legislation "stated, re-stated and overstated that no religious institutions or practices would be affected." Thistlewaite adds,

There is even more evidence, beyond New Hampshire, that 'stating, re-stating and over-stating' religious liberty in marriage equality struggles increases the chances of legislative success. Over half of mainstream pastors support same-sex marriage, especially when it is made clear that they will not necessarily have to perform these marriages says a recently released report by Public Opinion Research ... Protecting the freedom of religion, when that is a faith-based case, is a way to undercut the "moral monopoly" of the religious opponents to gay equality under the law. The broad middle of the American public seem ready to accept those arguments when they are linked, as the passage of the New Hampshire bill demonstrates.

Tuesday, June 9, 2009

Tomorrow the Washington, D.C., Board of Elections and Ethics will hold a hearing on a proposed referendum to let D.C. voters approve or reject the new law that allows D.C. to recognize out-of-state marriages. ADF Senior Legal Counsel Brian Raum will testify.

“The people of the District of Columbia should have the right to determine how marriage will be recognized in their district,” said Raum. “The D.C. city council decided to recognize ‘marriages’ from other jurisdictions that are not legal in the District of Columbia. It’s only common sense that the people of D.C., like Americans across the county, should have a say on something that runs contrary to so much of the district’s and the nation’s laws and history.”

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. She observes that

[t]he marked trend ... is towards permitting same-sex couples and gay and lesbian individuals to adopt on the same terms as other couples and individuals ... But there is another end of the spectrum, where four outlier states reside: Florida, Mississippi, Arkansas, and Utah. Section 63.042 of the Florida Code provides that "No person may adopt if that person is a homosexual." This categorical ban on adoption by homosexuals is the only one in the nation ... Mississippi and Utah bar same-sex couples from jointly adopting children, although neither state bans gay or lesbian individuals from adopting individually.

has been dubbed the "everything but marriage" bill. When it takes effect in July, it will expand previous domestic partnership laws to include issues like adoption, child support, pensions and other public-employee benefits.

The Times describes a campaign within "the Christian conservative community" to repeal the law by referendum. Participants have started collecting petition signatures. But the Times reports that

some conservatives fear that public support for domestic partnership rights and a preoccupation with the economy could doom the effort -- and make it harder to battle same-sex marriage down the road.

Same-sex partners tend to view domestic partnerships as inherently unequal. Nevertheless, as I have suggested elsewhere, even more limited domestic partnership laws have the potential to weaken public support for statutory and constitutional bans on same-sex marriage. Divisions among opponents of same-sex marriage show their concern over whether their reaction to domestic partnerships can do more harm than good to their long-term goal of sustaining such bans.

Jennifer Pizer is the National Marriage Project Director for Lambda Legal. She said,

"The shift in New England ... has affected how people think about the issue nationwide."

Brian Brown is executive director of the National Organization for Marriage. He said,

"[T]here's been a concerted effort to focus on the Northeastern states that don't have initiative and referenda and to pass same-sex marriage through these legislatures and then the people don't have a chance to have their say."

Monday, June 8, 2009

The document must be titled petition for rehearing because that is the only procedural vehicle for requesting any modification, but we are simply asking the Court to correct a factual error, not to rehear the entire case.06/11/09 The Bay Area Reporter:

"It is a very significant mistake," said Minter. "This decision will be on the books forever. Future courts might be swayed by that fact."